Medical Malpractice And Expert Witnesses

By Expert Author: R. Klettke

There is a fundamental challenge to all medical malpractice lawsuits. After a medical malpractice attorney wins a case, those who are neither medical providers nor economists are asked to devise a fair financial outcome for the patient who is the victim of a serious medical error that has led to substantial loss.

For example, in a case where the medical provider erred in delivering a baby – and the mistake or mistakes resulted in a severe disability that would affect the child over his or her entire life – a judge and jury may be asked to determine what happened and how much it will cost the injuring party. Not all medical problems are due to error, so the court will need to determine cause and effect of what took place. Importantly, the financial burden of that child’s healthcare and inability to work could extend for decades into the future. How are fault and long-term cost determined with certainty in such a complex problem?

The answer is medical malpractice expert witnesses hired by the personal injury attorney – known also as “medical malpractice attorneys” – representing the injured party. Third-party physicians and healthcare economists provide information to the court that helps determine fault and financial responsibility. The expert’s testimony on behalf of the plaintiff (the injured patient) addresses the following:

• Establish that the level of care was not up to standards – A mistake is a mistake only if it is not as good as what peer professionals and healthcare facilities do as a matter of course.

• Establish that the breach in care was the cause of the unnecessary injury – If an injury occurs but is judged to be due to something other than the mistake, the lawsuit may fail. The expert witness needs to connect the dots if the lawsuit is to succeed.

• Determine the long-term costs of the injury – An economist who understands both the medical needs and degree of disability of the patient, as well as the general nature of healthcare economics, should be able to project future out-of-pocket costs that need to be covered by the settlement.

Who can be an expert witness in medical malpractice cases?

There are legal definitions for who can serve as an expert witness. Such a individual needs to have credentials – licensed professionals who are board certified and in good standing with their profession – that qualify them to discuss the case before the court. Their testimony needs to be supported by evidence in similar cases (such as is found in peer reviewed research). The expert witness should also be able to speak to any known or potential rates of error, given the variability of human physiology and specific, often-unique medical circumstances. They also need to speak to reasonable community or profession-wide standards.

When these definitions are not met, the expert witness weakens the case considerably. For the medical malpractice litigant, a qualified medical malpractice attorney will understand how to identify, prepare and examine a qualified expert witness to support the patient’s case.